With the presidential election just a few days away, there is a lot of uncertainty on the future direction of OSHA. If President Obama wins a second term, employers should expect to see a more active OSHA from the regulatory perspective, as many rules that could impact the employers are poised to be published in either proposed or final form after the election. From an enforcement perspective, employers should expect to see the same level of active OSHA enforcement in a second-term Obama presidency. If Governor Romney wins the election, some of the regulatory initiatives currently in the pipeline may be slowed or even scrapped, but undoubtedly some will be proposed or finalized. Enforcement should also continue at high levels, although some of the enforcement procedures and targeting programs of the Obama administration may be changed. For example, it is possible that OSHA under a “President Romney” may revisit the Severe Violator Enforcement Program or the Enhanced Administrative Penalties Memorandum published during President Obama’s administration. Needless to say, Tuesday’s results will be – and should be – followed closely by all.
Below is a description of some of the regulatory initiatives that are primed to move forward under a second term Obama Presidency (and perhaps even a first term Romney Presidency):
Injury and Illness Prevention Program (IIPP). OSHA’s IIPP rule has been the agency’s oft-stated most-significant regulatory priority. This initiative has been under development for almost three years. Over the last several months, OSHA has hinted that it is ready to begin the Small Business Regulatory Enforcement Fairness Act (SBREFA) process for the rule, whereby the agency would solicit input on the rule from affected small business entities; but OSHA has not yet started the process. It is still unclear what an IIPP rule will look like since OSHA faces the challenge of creating mandatory requirements that can be applied to employers of all sizes and in all industries. Stay tuned!!
Crystalline Silica. Employers should also stay tuned for OSHA’s rulemaking to comprehensively regulate crystalline silica. OSHA’s draft proposed regulatory text for the rule, published in 2002, considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations. The proposed regulation could have significant impacts on employers and is still under review by the Office of Management and Budget (OMB), where it was first submitted in February, 2011. This is a proposed rule that could certainly be affected by the outcome of the election.
Stricter Injury and Illness Reporting Obligations. OSHA has also proposed requiring employers to report workplace amputations to the agency within 24 hours, as well as all in-patient hospitalizations within 8 hours. Existing recordkeeping rules require employers to report in-patient hospitalizations of 3 or more employees to OSHA within 8 hours. Any workplace fatality would continue to be reportable, as well. OSHA’s proposed rule that would require employers to “check” a separate column on the OSHA 300 Log is also still out there and potentially ready to go final. Should President Obama win a second term, employers should not be surprised if these rules are finalized in pretty short order.
